Krawczyszyn v. Ohio Bureau of Employment Services

560 N.E.2d 807, 54 Ohio App. 3d 35
CourtOhio Court of Appeals
DecidedJanuary 3, 1989
Docket54499
StatusPublished
Cited by16 cases

This text of 560 N.E.2d 807 (Krawczyszyn v. Ohio Bureau of Employment Services) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Krawczyszyn v. Ohio Bureau of Employment Services, 560 N.E.2d 807, 54 Ohio App. 3d 35 (Ohio Ct. App. 1989).

Opinion

Patton, J.

This is an appeal by Kim M. Krawczyszyn (“claimant”) from rulings that denied her claim for unemployment compensation. The record discloses the following.

Claimant was employed with MCI Telecommunications as a commercial sales representative beginning February 28,1984. At some point, a social relationship developed between the claimant and her immediate supervisor. After a time, the claimant ended the social relationship with her supervisor even though he wished to continue it.

*36 The referee in this case reported that claimant’s supervisor continually harassed and annoyed the claimant. The claimant stated that this harassment occurred at work and at home. She recalled that her supervisor pinched and kissed her against her will on several occasions. As her supervisor’s harassment continued, the claimant grew increasingly dissatisfied with her employment.

Despite her anger at her supervisor’s persistent conduct, the claimant did not report that conduct to her employer’s personnel department. She stated that she was uncomfortable making such allegations against her supervisor and that she feared the consequences such allegations would have on her future prospects for employment.

Finally, in early June 1986, the claimant telephoned her supervisor’s immediate superior in Michigan and complained of her supervisor’s sexual harassment. The claimant was told that her supervisor was “only kidding.”

Days later, on June 4, 1986, the claimant submitted her resignation from employment with MCI Telecommunications effective June 20, 1986. She subsequently applied for unemployment compensation benefits, but her claim was denied at each level of the administrative process.

The claimant brought this appeal from an adverse decision in the common pleas court, and she asserted one assignment of error:

“The trial court erred by affirming the decision of an Unemployment Compensation Board of Review referee, who found the appellant’s decision to quit her job in the face of persistent sexual harassment a ‘quit without just cause.’ ”

The assignment of error is not well-taken.

We note at the outset that the determination of factual issues is within the province of the referee and the board of review. Brown-Brockmeyer Co. v. Roach (1947), 148 Ohio St. 511, 36 O.O. 167, 76 N.E. 2d 79. If the board’s decision is not unlawful, unreasonable or against the manifest weight of the evidence, then the common pleas court should affirm the board’s decision. See R.C. 4141.28(0). Our inquiry is limited to determining whether the common pleas court abused its discretion. See Feldman v. Loeb (1987), 37 Ohio App. 3d 188, 190, 525 N.E. 2d 496, 498.

In this case, the common pleas court affirmed the decision of the board of review that denied unemployment compensation benefits because the board found the claimant had quit without just cause. R.C. 4141.29(D) states in relevant part:

“* * * individual may serve a waiting period or be paid benefits

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“(2) For the duration of his unemployment if the administrator finds that:

“(a) He quit his work without just cause * *

The claimant has the burden of proving her entitlement to unemployment compensation benefits, including the existence of just cause for quitting work. See Irvine v. Unemployment Comp. Bd. of Review (1985), 19 Ohio St. 3d 15, 17, 19 OBR 12, 14, 482 N.E. 2d 587, 589. “Just cause,” in the statutory sense, is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act in a particular case. Id.

The referee in this case found that the claimant had been subjected to sexual harassment by her supervisor. The claimant maintains that her supervisor’s persistent sexual harassment provided her with just cause to quit her employment. A supervisor’s con *37 tinuous sexual harassment may indeed provide an employee with just cause to quit her employment. See Monarch Fed. Credit Union v. Winters (July 5, 1983), Stark App. No. CA-6070, unreported.

However, the cases also recognize that where an employer provides its employees with a mechanism to air their grievances concerning such misconduct in the workplace, a victim of sexual harassment must make a good faith effort to employ that mechanism so that the employer is made aware of the problem and is afforded an opportunity to correct the problem. See, e.g., Dura Supreme v. Kienholz (Minn. App. 1986), 381 N.W. 2d 92; St. Barnabas, Inc. v. Unemployment Comp. Bd. of Review (Pa. Commw. 1987), 525 A. 2d 885; Colduvell v. Unemployment Comp. Bd. of Review (Pa. Commw. 1979), 408 A. 2d 1207. An employee who resigns before providing her employer with a reasonable opportunity to correct offensive conduct in the workplace risks quitting her employment without just cause.

Of course, an employee need not indefinitely subject herself to abusive conduct while waiting for her employer to respond. Moreover, there may exist circumstances that would excuse the employee from pursuing the employer’s internal grievance procedure, such as where the procedure would be futile, see, e.g., McEwen v. Everett (1982), 6 Ark. App. 32, 637 S.W. 2d 617; Hussa v. Employment Security Dept. (1983), 34 Wash. App. 857, 664 P. 2d 1286, or where the employee’s previous complaints produced no change in behavior, see, e.g., Stevenson v. Morgan (Ore. App. 1974), 522 P. 2d 1204. But in the absence of such extenuating circumstances, the employee should ordinarily attempt to utilize her employer’s internal grievance mechanism or some other suitable alternative before resorting to a voluntary resignation for purposes of maintaining eligibility for unemployment compensation. As one court explained:

“The problem of job-related sexual harassment or insinuation is a very difficult one; employees are understandably reticent to complain or try to prove affronts of such a personal and debasing nature, especially when they come from a supervisor.

“However, for purposes of unemployment compensation benefits, the law is clear: the claimant must sustain the burden of proving a reasonable attempt to stay on the job. Claimant’s failure to give the owners an opportunity to understand the nature of her objection, before resigning, did not meet that burden.” Colduvell v. Unemployment Comp. Bd.of Review, supra, at 1208.

In the instant case, the referee found that the claimant had been the victim of sexual harassment by her supervisor, but that the claimant did not report that misconduct to her employer’s personnel department. The claimant acknowledged that she had discussed other matters with her employer’s personnel department, but she did not report her supervisor’s misconduct to the personnel department.

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Bluebook (online)
560 N.E.2d 807, 54 Ohio App. 3d 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krawczyszyn-v-ohio-bureau-of-employment-services-ohioctapp-1989.